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B.C. man wrongly jailed 27 years for rape can sue, court says

The landmark ruling clarifies when criminal prosecutors can be sued if they fail to disclose evidence to accused persons.

Ivan Henry smiles in Vancouver, B.C. in October, 2010 after he was acquitted on eight counts of rape that sent him to prison in 1983 for 27 years. The Supreme Court ruled Friday he can sue the Crown. (Jonathan Hayward / THE CANADIAN PRESS file photo)

By Tamsyn BurgmannThe Canadian Press

Fri., May 1, 2015

OTTAWA—A Supreme Court of Canada ruling permitting a British Columbia man who was wrongly imprisoned for 27 years to sue the Crown may be the pivotal trigger for an out-of-court settlement, say observers.

The high court decision on Friday ruled that Ivan Henry can use the Charter of Rights and Freedoms to pursue a lawsuit after his life was upended by convictions for 10 sex crimes he did not commit.

The landmark ruling clarifies the circumstances under which criminal prosecutors may be sued if they fail to disclose evidence to accused persons.

“My own impression is it is a great win for Ivan,” said Vancouver author Joan McEwen, who spent hundreds of hours over three years with Henry and wrote a book on his case.

She predicted Henry is entitled to more than $10 million, but said the 68-year-old man’s ailing health may pressure him to accept less in order to obtain compensation sooner. “Because he’s worried about dying and when he dies his case dies with him.”

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The federal government compensated David Milgaard — who spent 23 years in prison before being cleared of rape and murder with DNA evidence — with $10 million in 1999. Other high-profile settlements have come in at $6.5 million for Steven Truscott and $4.25 million for William Mullins Johnson.

Henry was convicted in 1983 of rape and indecent assault against eight women in Vancouver and declared a dangerous offender.

After a protracted bid for freedom, the B.C. Court of Appeal overturned the convictions. In 2010, the court declared prosecutors had not fully disclosed evidence.

The next year he sued the provincial and federal attorneys general, the City of Vancouver and three members of its police department for withholding material that could have helped his defence. His civil case has been pending trial for four years.

Criminology Prof. David MacAlister, at Simon Fraser University, said a seven-figure settlement is likely based on past precedent and factors like the income Henry lost over 27 years in prison, the hardships of being tagged a sex offender and separation from his two daughters.

“We just don’t see these big dramatic trials in which a government tries to defend the actions of its prosecutors or police, who essentially pursued the wrong suspect,” he said.

Friday’s ruling centres on a fine point of charter law, but it’s one that has major ramifications over how criminal cases proceed every day in courtrooms across Canada.

Henry wanted to proceed with his lawsuit without having to prove that the Crown’s failure to disclose involved malice.

The government wanted the higher standard of malice to be upheld to protect prosecutors from a flood of lawsuits, but Supreme Court Justice Michael Moldaver said malice did not need to be proven.

McEwen, now Henry’s friend, said that when he has come across as bitter, it’s based on roadblocks cemented by a system that avoids admitting its errors.

“(Exonerees) want the people who put them in jail to be as held accountable, and pursued with as much zeal, as they were pursued when they were wrongly convicted.”

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